It's not about not liking the distinction, it's about there really not being one at all, at least in terms of infringement upon liberty. I think it's being extremely literal to a ridiculous degree to say that Congress has the power to tax because it is explicitly given so, but that if a regulation acts for all practical purposes like a tax except for being much less restrictive of freedom than a tax, it's unconstitutional because it's not a tax. The fact that Congress is given the power to tax implies that any regulations less coercive than a tax are also acceptable to further the same goals, IMO.

The Civil Rights Act also comes to mind as another regulation that is at least as coercive as the ACA; it requires individuals to engage in commerce with people whom they would prefer not to.

It's not about not liking the distinction, it's about there really not being one at all, at least in terms of infringement upon liberty. I think it's being extremely literal to a ridiculous degree to say that Congress has the power to tax because it is explicitly given so, but that if a regulation acts for all practical purposes like a tax except for being much less restrictive of freedom than a tax, it's unconstitutional because it's not a tax. The fact that Congress is given the power to tax implies that any regulations less coercive than a tax are also acceptable to further the same goals, IMO.

The Civil Rights Act also comes to mind as another regulation that is at least as coercive as the ACA; it requires individuals to engage in commerce with people whom they would prefer not to.

Not quite. The Civil Rights Act of 1964 has a number of opt outs, the most basic one of which is to not engage in the activity that is being regulated. If you don't like mandatory auto insurance, you can always choose to not drive. If you don't like mandatory health insurance, you can't stop breathing. But beyond the "don't do it" exception, the CRA of 1964 has a vague "private club" exception to Title II (public accommodations), and religious and private non-profit organizations are exempted from Title VII (employment).

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Quote from: Ignatius of Antioch

He that possesses the word of Jesus, is truly able to bear his very silence.  Epistle to the Ephesians 3:21a

The sharp disagreement rate will go up no matter what the court rules because this issue is so polarized. I don't think you can necessarily conclude anything from what Ginsburg said. The closest thing she seems to give to a tipoff was that she did make it sound as though the individual mandate was in serious trouble:

Quote

Ginsburg noted that one ACA-related question the court must decide is whether the whole law must fall if the individual mandate is unconstitutional  or may the mandate be chopped, like a head of broccoli, from the rest of it?

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning. So, I don't think that tips a hand on anything. She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

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"Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined." Frederick Douglass

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning. So, I don't think that tips a hand on anything. She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

Why?

There is no explicit severability clause and there are very reasonable reasons to not want the "must carry" and "must purchase" provisions severed.

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Quote from: Ignatius of Antioch

He that possesses the word of Jesus, is truly able to bear his very silence.  Epistle to the Ephesians 3:21a

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning. So, I don't think that tips a hand on anything. She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

Why?

There is no explicit severability clause and there are very reasonable reasons to not want the "must carry" and "must purchase" provisions severed.

No there isn't; the vast majority of this colossal bill has absolutely nothing to do with those provisions. No one with even a shadow of care for judicial constraint would ever strike down those portions.

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning. So, I don't think that tips a hand on anything. She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

Why?

There is no explicit severability clause and there are very reasonable reasons to not want the "must carry" and "must purchase" provisions severed.

No there isn't; the vast majority of this colossal bill has absolutely nothing to do with those provisions. No one with even a shadow of care for judicial constraint would ever strike down those portions.

Judicial restraint does not mean that judges should get to pick and choose when they will apply severabilty. Courts should not be expected to function as editors because legislatures are unable to write a law that says what they mean. One aspect of this case is that it will likely establish clearer precedent concerning severability. Considering that they spent the morning of the third day of arguments covering this very question, I don't see it as a slam dunk in either direction. It's fairly clear from arguments that they will almost certainly consider some of the provisions to be inseverable from the individual mandate. For them to come up with a means to leave other provisions intact if they strike the individual mandate would seem to require that they come up with a clearer standard of when severabilty does apply. If they don't have a clear standard, then they will be acting like legislators instead of judges if they decide which parts can be severed.

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Quote from: Ignatius of Antioch

He that possesses the word of Jesus, is truly able to bear his very silence.  Epistle to the Ephesians 3:21a

No, judicial discretion is a power of the court, and does not render it into a legislative body. In the absence of a severability clause, the court has discretion to determine which of the law's provisions are or are not severable from the "mandate." They would have to base that finding on the content of the remainder of the law, not just on the length of the bill and the fact that they don't want to play today. So with regard to that content, what, for example, do the provisions dealing with eventual generic offerings of biologic drugs, Preventive Services, an indoor tanning tax, new medical fraud deduction methods, the Medicare part-D rebate, the reduction in Medicare Advantage subsidization, or the health insurance exchanges have to do with the mandate?

« Last Edit: June 17, 2012, 11:36:09 am by anvi »

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"Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined." Frederick Douglass

I would say that the onus is on showing that they are not related so that they can be severed, not on showing they are unrelated so that they cannot be severed. With the exception of the indoor tanning tax, I would say that all of those provisions because of their direct connection to health care are sufficiently related that I cannot see severing them without also severing the must carry provision. While must offer without must purchase is a generally agreed to be a bad combination, that is for subjective reasons. There are no legal problems incurred if insurers are required to offer insurance to everyone at the same rates but people are not required to purchase that would provide an objective reason to make must offer and must purchase inseverable without making pretty much the whole bill inseverable save for a few minor provisions.

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Quote from: Ignatius of Antioch

He that possesses the word of Jesus, is truly able to bear his very silence.  Epistle to the Ephesians 3:21a

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning. So, I don't think that tips a hand on anything. She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

Why?

There is no explicit severability clause and there are very reasonable reasons to not want the "must carry" and "must purchase" provisions severed.

No there isn't; the vast majority of this colossal bill has absolutely nothing to do with those provisions. No one with even a shadow of care for judicial constraint would ever strike down those portions.

Judicial restraint does not mean that judges should get to pick and choose when they will apply severabilty. Courts should not be expected to function as editors because legislatures are unable to write a law that says what they mean. One aspect of this case is that it will likely establish clearer precedent concerning severability. Considering that they spent the morning of the third day of arguments covering this very question, I don't see it as a slam dunk in either direction. It's fairly clear from arguments that they will almost certainly consider some of the provisions to be inseverable from the individual mandate. For them to come up with a means to leave other provisions intact if they strike the individual mandate would seem to require that they come up with a clearer standard of when severabilty does apply. If they don't have a clear standard, then they will be acting like legislators instead of judges if they decide which parts can be severed.

Bullsh**t. Scalia basically said he's lazy and laughed it off. Forgetting that someone had to write the bill, and he's complaining about even reading it. They're not going to be editing anything. The standard is that the rule on what they're frickin' asked to rule on: the issue before the court. The parts of the law that haven't been constitutionally challenged shouldn't be constitutionally struck down. What's the justification for the court striking down a part of a law that hasn't even been contested as unconstitutional? The issue isn't even before the court, and they're going to strike it down just because they don't like it. There's no difference between that and dictatorship.

Heck, they might as well just rule that Romney is the winner of the election, like they did in 2000.

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning. So, I don't think that tips a hand on anything. She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

Why?

There is no explicit severability clause and there are very reasonable reasons to not want the "must carry" and "must purchase" provisions severed.

No there isn't; the vast majority of this colossal bill has absolutely nothing to do with those provisions. No one with even a shadow of care for judicial constraint would ever strike down those portions.

Judicial restraint does not mean that judges should get to pick and choose when they will apply severabilty. Courts should not be expected to function as editors because legislatures are unable to write a law that says what they mean. One aspect of this case is that it will likely establish clearer precedent concerning severability. Considering that they spent the morning of the third day of arguments covering this very question, I don't see it as a slam dunk in either direction. It's fairly clear from arguments that they will almost certainly consider some of the provisions to be inseverable from the individual mandate. For them to come up with a means to leave other provisions intact if they strike the individual mandate would seem to require that they come up with a clearer standard of when severabilty does apply. If they don't have a clear standard, then they will be acting like legislators instead of judges if they decide which parts can be severed.

Bullsh**t. Scalia basically said he's lazy and laughed it off. Forgetting that someone had to write the bill, and he's complaining about even reading it. They're not going to be editing anything. The standard is that the rule on what they're frickin' asked to rule on: the issue before the court. The parts of the law that haven't been constitutionally challenged shouldn't be constitutionally struck down. What's the justification for the court striking down a part of a law that hasn't even been contested as unconstitutional? The issue isn't even before the court, and they're going to strike it down just because they don't like it. There's no difference between that and dictatorship.

Heck, they might as well just rule that Romney is the winner of the election, like they did in 2000.

Well, reading the bill is something for the law clerks do for judges, just like staffers wrote the bill. (If you think any actual elected Congresscritter did any of the actual writing, you have a higher opinion of Congress than I do.) You seem to be arguing that if they decide to strike the individual mandate and to sever, then they should so narrowly and leave Congress to clean up the mess that will result from must offer without must purchase. A nice reasonable position, but one I doubt Kennedy will adopt. Of all the judges on the current court, he's the one I think is most likely to try to pick and choose what gets saved.

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Quote from: Ignatius of Antioch

He that possesses the word of Jesus, is truly able to bear his very silence.  Epistle to the Ephesians 3:21a

Isn't the issue as to serverability, to ask just what portions of the bill depend on the revenues generated by mandatory health insurance one way or the other (to wit, those provisions which almost certainly would not be in the Bill absent mandatory health insurance)? That certainly is the question I would be asking.

Isn't the issue as to severability, to ask just what portions of the bill depend on the revenues generated by mandatory health insurance one way or the other (to wit, those provisions which almost certainly would not be in the Bill absent mandatory health insurance)? That certainly is the question I would be asking.

Unless there is some subsidy being provided out of the tax imposed for not having health insurance, then there is no direct linkage of funds. If the desirability of the private economic impact that severing (or not severing) other provisions from the mandate is cause for determining whether they are severable, then that would give the judicial branch carte blanche to subjectively filet any law with an unconstitutional provision, and subjective decisions should ideally be left to the legislative branch to make.

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Quote from: Ignatius of Antioch

He that possesses the word of Jesus, is truly able to bear his very silence.  Epistle to the Ephesians 3:21a

Isn't the issue as to severability, to ask just what portions of the bill depend on the revenues generated by mandatory health insurance one way or the other (to wit, those provisions which almost certainly would not be in the Bill absent mandatory health insurance)? That certainly is the question I would be asking.

Unless there is some subsidy being provided out of the tax imposed for not having health insurance, then there is no direct linkage of funds. If the desirability of the private economic impact that severing (or not severing) other provisions from the mandate is cause for determining whether they are severable, then that would give the judicial branch carte blanche to subjectively filet any law with an unconstitutional provision, and subjective decisions should ideally be left to the legislative branch to make.

One would need to look at the legislative history to get a better handle on how the parts work together. Oh wait, maybe there isn't much of any legislative history on this Bill, since nobody read it before it passed.

Anyway, even the government (solicitor general) admits that the rule requiring insurers to take insured with pre-existing conditions will have to go, since the quid pro quo was to get a host of healthy youngs who would pay excessive insurance premiums to subsidize the olds and the sicks. As to how the penalty payments penciled into the bevy of largely cooked up numbers, I don't have a clue.

I believe that the Fed carrot for employer plans doing what the Feds want, is that the benefits are not treated as income to the employees even thought the cost to the employer is deductible. Again it is done through the tax code. Yes I appreciate folks don't like the distinction between coercion through taxation, and coercion through regulation under the interstate commerce clause. But there is a method to the madness and the reason heretofore Congress structured their laws they way they did - except this time with the mandate.

So it looks like SCOTUS jumped to Torie's claim of a tax, and simply ignored much of the way the case was argued.